Key points
- "The exercise of discretion [by the Board of Appeal] is only subject to review if arbitrary or manifestly illegal, ("... illégalité manifestes ...", see R 10/11 para 5.2), thereby involving a fundamental violation of the right to be heard (R 9/11)."
- This implies that the Enlarged Board will only allow a petition for review based on a violation of the right to be heard by a decision of a Board to hold a submission inadmissible if the exercise of discretion by the Board is arbitrary or manifestly illegal (but then will do so) (and provided that the Board indeed had a discretionary power to hold the submission inadmissible).
- Decision Board of Appeal: 19.03.2021 (written decision). The decision of the Enlarged Board of Appeal in the three-member panel was issued on 05.03.2024 (written decision).
- Decision OD: 2018. Grant: 2014. Filed as PCT application: 2006.
Review of the Board's discretionary decision to not postpone the oral proceedings
1. The Enlarged Board has no competence under Article 112a EPC to examine the merits of the decision and to go into the substance of a case (R 13/10 para 4, R 7/17 para 7 and 8), not even indirectly (R 3/18 para 2.4, pages 13 - 14). The Enlarged Board not being competent to decide on the merits of a case necessarily implies that the Enlarged Board, as a rule, has no power to control the normal exercise a board makes of its discretion (R 10/09 para 2.2, see also R 6/17 para 3.5). In this case, the Board exercised its discretionary power under Article 15(2) RPBA as regards its decision not to further postpone the oral proceedings.
2. The exercise of discretion is only subject to review if arbitrary or manifestly illegal, ("... illégalité manifestes ...", see R 10/11 para 5.2), thereby involving a fundamental violation of the right to be heard (R 9/11).
3. The Petitioner cannot claim that the right to be heard has been infringed in respect of its request that the oral proceedings before the Board be postponed. Whether to postpone the 1 October 2020 oral proceedings was the subject of submissions by the Petitioner and a communication of the Board dated 30 September 2020 setting out the reasons for the Board's rejection of this request. Indeed, the Decision sets out in full detail the various submissions of the parties and the communications of the board on this point, see para XIV to XX, XXIII to XXXV, XLI of the Decision. The Decision substantively considers those submissions in para 5 to 30. Thus, there has been no violation of the Petitioner's right to be heard in this respect.
4. The Enlarged Board thus finds this ground of petition unallowable.
Dear Peter,
ReplyDeleteThanks for highlighting this aspect of decision 477/21. It is indeed provocative.
The notion proposed by BOA 3.3.06 of a « non-coercive discourse » between BOAs is an example of creative EPO novspeak aimed at presenting as acceptable the BOAs’ inability to resolve their differences.
The BOA is certainly entitled to express the point of view of the « referring Board ». The problem is its utter disregard for the point of view and interests of the EPO users. On the issue of the requirement of removing inconsistencies between the claims and the description, the EPO has cited improved legal certainty for users involved in court proceedings as its major motive. A prolonged « non-coercive discourse » involves as an acceptable principle a situation of prolonged unpredictability for users as to the likely decisions of the BOAs i.e. increased uncertainty.
This leaves the unwelcome impression that the much touted independence of the BOA’s means first the independence of BOAs with respect to each other and as a result, a priority given to debates within BOAs. The reliance on Habermas’ philosophy is interesting from a conceptual standpoint and seems gratifying for some BOA members. But this is philosophy, not law, and pays scant attention to a core mission of the BOAs which is to build a consistent case law and to the implications for EPO users.
I overlooked your comment of 13 March but have approved it after all.
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